Dorris v. Townsends of Arkansas, Inc.

218 S.W.3d 351, 93 Ark. App. 208

• Court: Court of Appeals of Arkansas
• Decided: November 30, 2005
• Docket: CA 05-292
• Status: Published

Opinions

John Mauzy Pittman, Chief Judge.

The appellant filed a claim for workers’ compensation benefits asserting that she sustained a compensable gradual onset injury to her left shoulder while shoveling ice in the course of her employment by appellee. At the hearing, appellant changed her contention to allege that the injury to her left shoulder was caused by a specific event rather than gradual onset. The Arkansas Workers’ Compensation Commission denied benefits, finding that appellant failed to prove by a preponderance of the evidence that she sustained an injury to her left shoulder resulting from a specific incident, and thus failed to prove the elements necessary to establish a compensable specific incident injury. On appeal, appellant contends that the Commission’s finding is not supported by substantial evidence. We do not agree, and we affirm.

In reviewing decisions of the Arkansas Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. Wal-Mart Stores, Inc. v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999). Where, as here, the Commission has denied a claim because of the claimant’s failure to meet his burden of proof, the substantial evidence standard of review requires that we affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Williams v. Arkansas Oak Flooring Co., 267 Ark. 810, 590 S.W.2d 328 (Ark. App. 1979).

Gradual onset injuries are compensable only under limited conditions under the Arkansas Workers’ Compensation Law; in contrast, accidental injuries, caused by a specific incident and identifiable by time and place of occurrence, are generally compensable. Compare Ark. Code Ann. § 11-9-102(4) (A)(i) and (ii) (Supp. 2005). In finding that appellant failed to prove that her injury was the result of a specific incident, the Commission relied upon the testimony of Ms. Faye Shales, appellee’s medical department supervisor. Ms. Shales stated that she helped appellant file the first report of injury on October 16, 2001, and that appellant described the injury to her as something that gradually happened to her shoulder after shoveling ice the previous month. The Commission also relied upon evidence that the worker’s compensation forms completed and signed by appellant stated that this was a gradual onset injury.

The appellant testified at the hearing that she was injured by a specific incident in August during which, while pushing hard with her shovel against the ice, she felt a sudden pain in her shoulder as if someone had hit her and that she immediately reported this to the nurse but that it was not recorded. She also stated that she subsequently returned to the nursing station almost every day with complaints of shoulder pain until Ms. Shales ultimately helped her fill out the injury report on October 16, 2001. Finally, appellant stated that she did not know what “gradual onset” meant and that she put that on the injury report because she was instructed to do so by Ms. Shales.

The question of the sufficiency of the evidence in this case turns largely upon the credibility of the witnesses. The Commission is not required to believe the testimony of the claimant or any other witness. The testimony of an interested party is always considered to be controverted. Continental Express v. Harris, 61 Ark. App. 198, 965 S.W.2d 811 (1998). Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Arkansas Department of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993). It is the responsibility of the Commission to draw inferences when the testimony is open to more than a single interpretation, whether controverted or uncon-troverted, and when it does so, its findings have the force and effect of a jury verdict. Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998). Although appellant’s testimony quite clearly would have supported a finding that her injury was the result of a specific incident, the -question on appeal is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case ie novo. CDI Contractors v. McHale, 41 Ark. App. 57, 848 S.W.2d 941 (1993). On this record, we cannot say that'no reasonable, fair-minded persons could have reached the conclusion arrived at by the Commission, and we must therefore affirm.

Affirmed.

Gladwin, Robbins, and Bird, JJ., agree. Neal and Baker, JJ., dissent.